What Is a Disability? Conflicting definitions create legal labyrinth for doctors, workers, employers

Ilana DeBare, Chronicle Staff Writer

Published 4:00 am, Monday, October 5, 1998

Photo: LEA SUZUKI

Image 1of/1

Caption

Close

Image 1 of 1

Dr. Thomas McClure, right, consults with his patient, Marlene Maibaum, on her work related injury at the Occupational Injury Clinic. Photo By Lea Suzuki

Dr. Thomas McClure, right, consults with his patient, Marlene Maibaum, on her work related injury at the Occupational Injury Clinic. Photo By Lea Suzuki

Photo: LEA SUZUKI

What Is a Disability? Conflicting definitions create legal labyrinth for doctors, workers, employers

1 / 1

Back to Gallery

Doctors today have to be experts not just in setting broken bones and diagnosing cancer, but also in the field of employment law.

San Francisco lawyer Marci Seville had a client with severe hypertension whose doctor told her to take a 14- week leave from work.

But the doctor was unaware that the federal Family & Medical Leave Act requires companies to hold workers' jobs open for just 12 weeks -- so Seville's client lost her job.

"Had the physician known of the 12-week limit, he would have returned the employee to work earlier with some minor work restrictions," said Seville, who runs an employment law clinic at Golden Gate University.

Latest business videos

It's understandable that doctors are having a hard time keeping up with employment laws, which are changing almost as rapidly as the frontiers of medicine.

In this decade, America added two major new laws aimed at aiding sick or disabled workers -- the Americans with Disabilities Act and the Family & Medical Leave Act.

Each one requires doctors to issue reports that can play a key role in determining whether employees get to keep their jobs. But each has its own definition of illness or disability.

And -- when taken together with other programs such as disability insurance, workers' compensation and Social Security -- they create a tangle of sometimes-conflicting definitions of "disability" that can be confounding to even the most well-trained doctor.

"The laws are so complicated that it's almost impossible for the average physician, no matter how skilled, to keep up," said Dr. Robert Goldberg, an occupational medicine specialist with the U.S. Healthworks Medical Group in Sunnyvale.

"Most doctors I've talked to are familiar with workers' compensation, but very few know anything about the FMLA or the ADA," said Vicki Laden, an attorney with Boxer & Gerson in Oakland who frequently talks to medical groups about employment law. "I've had physicians call me and ask if I'd draft a medical note for them because they

don't know how to deal with (these laws)."

Ten years ago, most doctors dealt with just two main types of paperwork related to their patients' jobs -- applications for workers' compensation and for disability insurance.

But in 1991, Congress passed the Americans with Disabilities Act. And in 1993, it passed the Family & Medical Leave Act, which requires employers to give 12 weeks of leave to eligible workers.

To obtain an FMLA leave, workers must have their doctor certify that they or a family member have a "serious health condition."

But the federal government's definition of "serious health condition" is not necessarily shared -- or even understood -- by rank-and-file doctors.

And there's no standard certification form for FMLA leave, so doctors are faced with hundreds of different forms drawn up by different employers.

"Sometimes, patients bring in three to six pages of documents (from their employers) and ask them to be completed retroactively for an absence that was only three days," Goldblatt said. "Doctors are under phenomenal pressure from their patients to declare things a 'serious health condition.' They're often being asked to make decisions that have more to do with personnel policies than medical policies."

Goldblatt responded to Kaiser doctors' confusion by drawing up an internal set of FMLA guidelines that she has embossed in plastic and hands out to doctors in special training sessions on workplace law.

Meanwhile, passage of the ADA created a different set of challenges for doctors and their patients.

Previous disability laws such as State Disability Insurance were aimed primarily at providing income to workers who no longer could hold down jobs.

But the ADA took a dramatically different approach -- helping disabled people remain in the workforce. It required employers to provide "reasonable accommodations," such as wheelchair ramps or flexible schedules, that would allow people to keep working despite injuries or illness.

Employees seeking an ADA accommodation don't just need their doctor to certify that they've got a disability: They need their doctor to help flesh out the kinds of accommodations that would let them keep working.

But doctors -- used to disability insurance forms that simply ask whether a patient can work or not -- sometimes don't understand what the ADA requires.

And sometimes, doctors' diagnoses for purposes of disability insurance can be used to argue against the employee's request for on-the-job accommodation.

Drew Bell ended up in such a bind. When he was a bank examiner for Wells Fargo Bank in San Francisco, Bell's immune system started to fail because of HIV. He worked out a deal with the bank where he didn't have to do any out-of- town travel and could work from home one day a week to decrease his stress.

But after two years, the bank changed its policies. It no longer guaranteed him one day of work at home each week and, according to Bell, said he might have to do out-of-town travel.

Bell's doctors told him that the travel and commute would damage his fragile health, so he decided to stop work and file for disability insurance.

Later, he sued the bank under the ADA -- saying it had refused to continue his "reasonable accommodation."

But Wells Fargo challenged Bell's ADA lawsuit -- and used his doctor's statements on the disability insurance application as one of its arguments.

The disability insurance applications didn't ask Bell or his doctors if he could work with an accommodation: They simply asked if he was too disabled to work. Bell's doctors said yes, he was too disabled to work.

Wells Fargo's lawyers have argued that Bell couldn't have it both ways -- saying on the insurance forms that he was too disabled to work but then saying in his ADA lawsuit that he could work if Wells made accommodations.

"One of Mr. Bell's doctors said he was totally disabled from any occupation," said Angela Bradstreet, a lawyer representing Wells Fargo. "It's hard to reconcile that with someone who is suing for (employment) discrimination."

Bell's case is scheduled for trial next spring in San Francisco Superior Court. Meanwhile, courts across the country have issued divergent opinions on whether employees can file for disability insurance and, at the same time, pursue ADA claims.

'We have two courts of appeal going one way on this and one court going the other way," said Bradstreet, who works for Carroll Burdick & McDonough and represents Wells Fargo. "At some point, the California Supreme Court is going to have to decide it. And frankly, the U.S. Supreme Court will have to wrestle with it, too."

Bell's dispute is just one example of the legal minefield being walked by doctors when they're asked to certify that employees are "disabled" or have "serious health conditions."

In the long run, some experts say, the best solution would be for the federal government to reconcile the contradictory definitions of what "disability" means in employment law.

But that's not likely to happen soon. In the meantime, the next-best solution may be to educate doctors in the details of the ADA, FMLA and other workplace laws -- and what their diagnoses could mean for their patients' careers.

"There really needs to be a great deal of training and orientation with all these new definitions and new requirements," said Dr. Linda Hawes Clever, chair of the Department of Occupational Health at California Pacific Medical Center in San Francisco. "But that's not the sort of course doctors are going to leap to take nor is it the sort of course that anyone requires of them."

WHAT'S A DISABILITY?

.

Here are the main programs offering benefits to ill or injured workers, and the different ways they define disability:

. Program -- Definition of disability -- Benefits provided

.

State Disability Insurance (SDI) -- An illness or injury that prevents you from performing your regular work. You must be disabled for at least eight calendar days and under care of a doctor who certifies that you are disabled. -- California workers get up to 52 weeks of cash payments, with amount based on previous wages.

.

Long-term disability insurance -- Varies from private policy to private policy. Typically defines disability as the inability to perform the duties of any occupation for which you have the education, training and experience. -- Varies from policy to policy. Typically provides cash payments based on a percentage of your former earnings.

.

Social Security -- An impairment that prevents you from doing any kind of work for which you are suited. The impairment must be expected to last for at least a year or result in death. -- Cash payments, with the amount based on lifetime earnings covered by Social Security.

.

Family Medical Leave Act (FMLA) and California Family Rights Act -- An injury, illness, or impairment that lasts more than three days and requires a doctor's care, or a chronic serious health condition requiring periodic treatment. -- Requires employers to give 12 weeks of unpaid leave.

.

Americans with Disabilities Act (ADA) and California Fair Employment & Housing Act -- A physical or mental impairment that substantially limits one or more major life activities. -- Employers are required to come up with a "reasonable accommodation" that will allow the worker to continue doing his or her job.

.

Workers compensation -- Any injury or disease arising out of employment that results in missed time from work, a need for medical care, or restrictions on work activities. -- Medical care and cash payments based on percentage of prior income.

.

Source: Attorney Vicki Laden of Boxer & Gerson; Chronicle research..

Latest from the SFGATE homepage:

Click below for the top news from around the Bay Area and beyond. Sign up for our newsletters to be the first to learn about breaking news and more. Go to 'Sign In' and 'Manage Profile' at the top of the page.